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2023 DIGILAW 182 (HP)

Rishav Bhardwaj v. State of Himachal Pradesh

2023-03-27

SABINA, SATYEN VAIDYA

body2023
JUDGMENT : SATYEN VAIDYA, J. 1. By way of instant petition, petitioner has prayed for following reliefs: (i) Issue a writ of certiorari thereby quashing and setting aside the impugned transfer order dated 28.09.2022 (Annexure P-2) issued by respondent No. 2. (ii) Issue a writ of mandamus directing the respondents not to implement the transfer order dated 28.09.2022. (iii) Issue a writ of mandamus directing the respondents authorities to allow the petitioner to serve at present place of posting i.e. GDC Karsog, District Mandi, H.P. 2. Vide notification dated 28.09.2022, petitioner was ordered to be transferred from Government Degree College, Karsog in District Mandi to Government Degree College, Nihri in the same district vice respondent No. 5. Petitioner is working as Assistant Professor (Music-Vocal). 3. Petitioner has taken exception to his above noted transfer order, on the ground that petitioner has been ordered to be transferred without allowing him to complete the normal tenure at Government Degree College, Karsog. His further grievance is that the transfer has been effected, on the basis of a D.O. Note, issued by respondent No. 4. As per petitioner, the impugned transfer has been effected only to accommodate respondent No. 5, without their being any administrative exigency or public interest. 4. The claim of the petitioner has been contested on behalf of the official respondents by filing a reply. It is submitted that petitioner himself had been beneficiary of D.O. letters in the past. As a matter of fact, petitioner got himself posted at Government Degree College, Karsog, on the basis of D.O. letter. He has been working in Government Degree College, Karsog, since 24.12.2019. Petitioner is holding Class-I gazetted post and the condition of normal tenure of three years, as applicable to Class-IV and Class-III employees, will not be applicable in the case of the petitioner. 5. We have heard learned counsel for the parties and have gone through the record of the case carefully. 6. Petitioner has not been able to controvert the fact regarding his adjustment and posting in Government Degree College, Karsog, since 24.12.2019. That being so, petitioner has been transferred after almost two years and nine months. Even otherwise, petitioner is a Class-I Gazetted Officer and the condition of normal tenure of three years, as incorporated in “Comprehensive Guiding Principles 2013” will not come to the aid of the petitioner. 7. That being so, petitioner has been transferred after almost two years and nine months. Even otherwise, petitioner is a Class-I Gazetted Officer and the condition of normal tenure of three years, as incorporated in “Comprehensive Guiding Principles 2013” will not come to the aid of the petitioner. 7. As regards, the grievance of the petitioner that his transfer has been effected on the basis of D.O. Note, he again cannot derive any benefit for the reason that he himself has been recipient of D.O. letters in the past. The D.O. letters procured by the petitioner on 05.10.2019 and 17.06.2020 have been placed on record as Annexure R-1 and R-2. These documents clearly reveal that in the first instance recommendation was made to transfer petitioner from Government Degree College, Sarkaghat to Government Degree College, Karsog and later, it was recommended to permanently transfer the petitioner to Government Degree College, Karsog. The D.O. letter, dated 12.06.2020, also reveals that petitioner had already been adjusted at Government Degree College, Karsog, on deputation, prior to issuance of said D.O. letter. That being so, the petitioner is not entitled to any relief. 8. A Co-ordinate Bench of this Court in CWP No. 3195 of 2021 titled as Bhup Singh vs. State of H.P and Another, decided on 30.06.2021 has held as under: “2. The main grievance of the petitioner is that his transfer has been effected on the basis of D.O. note. The record, which has been produced pursuant to our directions, reveals that the petitioner himself is the beneficiary of the D.O. note, therefore, in such circumstances, he is not entitled to any relief in terms of the repeated judgments rendered by this Court. 3. Reference in this regard can conveniently be made to the judgment rendered by this Court in CWP No. 1387 of 2021, titled as Parveen Kumar vs. State of H.P. and Others, decided on 31.03.2021, wherein it was observed as under: “13. Indeed, transfer is an incidence of service and government employees are supposed to be transferred and posted anywhere in the State. The transfers of the petitioner and that of respondent No. 4 are effected after the approval of the competent authority. Indeed, transfer is an incidence of service and government employees are supposed to be transferred and posted anywhere in the State. The transfers of the petitioner and that of respondent No. 4 are effected after the approval of the competent authority. The petitioner, earlier managed his posting at GSSS Nabahi, Mandi, and now he has been transferred from Nabahi, after completion of his normal tenure, so he has no right to say that transfer of respondent No. 4, effected on the basis of D.O. Note, is illegal and bad in the eyes of law. In fact, transfer of the petitioner has no tinge of malafides, neither without public interest nor vitiated, being against the settled Transfer Policy, as transfer is an incidence of service. Moreover in Sanjeev Sood vs. State of Himachal Pradesh and Others, CWP No. 4208 of 2020, decided on 22.12.2020, this Court has held as under: “9. This Court in CWP No. 4063 of 2019, titled Smt. Anita Rana and Another vs. State of Himachal Pradesh and Others, decided on 31.12.2019, has specifically held that a recipient/beneficiary of DO note cannot approach this Court ventilating the grievance that he/she has been transferred on the basis of DO Note. It would be apposite to refer to the relevant observations made by a Coordinate Bench in order dated 31.12.2019, which reads as under: “We have heard this matter for some time and also perused the record produced by the office of respondent No. 2. It is seen from the record that on the D.O. Note, the transfer of petitioner No. 1 has been proposed to be cancelled. Meaning thereby that she is also recipient of D.O. Note, hence not justified in ventilating the grievances that she has been transferred on the basis of D.O. note. Therefore, the writ petition qua her deserves to be dismissed and is accordingly dismissed leaving it open to her to make a representation either for cancellation of her transfer or adjustment at some suitable place, if so advised.” 10. Since it is apparent that the petitioner, on earlier occasions, got himself posted at stations of choice on the basis of UO Notes, petition praying therein for quashment of impugned order is not maintainable at all. Since it is apparent that the petitioner, on earlier occasions, got himself posted at stations of choice on the basis of UO Notes, petition praying therein for quashment of impugned order is not maintainable at all. However, having taken note of the fact that both, petitioner and respondent No. 3, have been repeatedly exerting political pressure to get themselves posted at stations of their choice, we dispose of this petition by directing respondents to transfer both, petitioner and respondent No. 3, to some other places in the State, especially where both of them have not served till date, within two weeks.” 9. Further, there is no gainsaying that the transfer is an incidence of service. The employer has unfettered power to effect transfer save and except for extraneous reasons. A government servant holding a transferable post, neither holds a fundamental nor legal right to remain posted at one place or the other. 10. In S.K. Nausad Rahaman and Others vs. Union of India and Others, Civil Appeal No. 1243 of 2022, decided on 10th March 2022, the Hon’ble Supreme Court has held as under: “24. While analyzing the rival submissions, certain basic precepts of service jurisprudence must be borne in mind. 25. First and foremost, transfer in an All India Service is an incident of service. Whether and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice. 26. Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.” 11. In Mohd. Masood Ahmad vs. State of U.P. and Others, (2008) 1 SCC 180 , the Hon’ble Supreme Court has held as under: “7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao vs. Union of India, (1993) 1 SCC 148 : AIR 1939 SC 1236, National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan, (2001) 8 SCC 574 : AIR 2001 SC 3309 , State Bank of India vs. Anjan Sanyal, (2001) 5 SCC 508 : AIR 2001 SC 1748 . Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P. (1997) 3 ESC 1668 : (1998) All. L.J. 70 and Onkarnath Tiwari vs. The Chief Engineer, Minor Irrigation Department, U.P. Lucknow, (1997) 3 ESC 1866 : 1998 All. L.J. 245, has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala-fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.” 12. The petitioner, in the light of above discussion, has not been able to make out a case for interference, with the impugned order, in exercise of power under Article 226 of the Constitution of India. 13. Thus, we find no merit in this petition and the same is dismissed. No order as to the costs. 14. Pending miscellaneous applications, if any, shall also stand disposed of.